5th Circuit: Gun Rights More Important Than Employer Rights

NEWORLEANS (Legal Newsline) — A fed­er­al appeals court recent­ly rein­stat­ed a law­suit brought by an employ­ee who alleged he was wrong­ly ter­mi­nat­ed for pos­sess­ing a con­cealed weapon on com­pa­ny prop­er­ty.

In a deci­sion filed Aug. 8 in the case of Robert Swin­dol v. Auro­ra Flight Sci­ences Cor­po­ra­tion, the U.S. Court of Appeals for the Fifth Cir­cuit said the plain­tiff has a claim for wrong­ful dis­charge after being fired in May 2013.

Swin­dol, who was work­ing for Auro­ra in Colum­bus, Miss., at the time, had a hand­gun locked inside his vehi­cle while the vehi­cle was parked in the employ­ee lot. Man­age­ment fired Swin­dol after learn­ing about the hand­gun and claim­ing that it vio­lat­ed com­pa­ny pol­i­cy that pro­hibits such weapons on the prop­er­ty.

David Bar­ron, a lawyer with Coz­en O’Connor in Hous­ton, wrote that the pol­i­cy con­flict­ed with Mis­sis­sip­pi state law that allows a hand­gun to be stored in a locked vehi­cle on com­pa­ny prop­er­ty.

The Fifth Cir­cuit asked the Mis­sis­sip­pi Supreme Court if vio­lat­ing the con­cealed hand­gun law meant an impor­tant pub­lic pol­i­cy vio­la­tion, which would cre­ate an excep­tion to the employ­ment at-will doc­trine. The Mis­sis­sip­pi court said yes to the ques­tion.

A deci­sion by the U.S. Dis­trict Court for the North­ern Dis­trict of Mis­sis­sip­pi dis­missed Swindol’s claim before the Fifth Circuit’s rever­sal.

In an inter­view with Legal Newsline, Bar­ron said the case is impor­tant because, while employ­ees and their lawyers fre­quent­ly seek to expand excep­tions to the at-will doc­trine, such efforts are rarely suc­cess­ful in the South.

“The case put gun rights at odds with employ­er rights, and gun rights were deemed more impor­tant,” he said.

Bar­ron said it is unlike­ly that a sim­i­lar case in a dif­fer­ent cir­cuit – the Fifth Cir­cuit cov­ers Texas, Louisiana and Mis­sis­sip­pi – would have pro­duced a dif­fer­ent out­come. Pub­lic pol­i­cy excep­tions come from state law, he said.

Bar­ron said one ques­tion that aris­es from this case is whether oth­er states now will also cre­ate or expand their pub­lic pol­i­cy excep­tions to the at-will doc­trine for employ­ees fired in vio­la­tion of their gun laws.

“In states that already have a well estab­lished pub­lic pol­i­cy excep­tion, I think the answer is ‘yes,’” he said. “In states like Texas that don’t already rec­og­nize a pub­lic pol­i­cy excep­tion to the at-will doc­trine, I doubt that this deci­sion will be fol­lowed, or lead to the state rec­og­niz­ing such a right.”

Employ­ers are con­cerned about allow­ing employ­ees to have guns on com­pa­ny prop­er­ty because of the lia­bil­i­ty risk if there were an acci­den­tal or pur­pose­ful shoot­ing. Bar­ron said it depends on the state.

“In states that require employ­ers to allow licensed employ­ees to store guns in locked cars in a park­ing lot, the law typ­i­cal­ly pro­vides a shield to the employ­er from lia­bil­i­ty,” he said.

For work­ers, Bar­ron said the deci­sion gives teeth to exist­ing pro­tec­tions against being fired for stor­ing a con­cealed weapon in a locked vehi­cle on his or her company’s prop­er­ty with­in the law.

“Absent this deci­sion, an employee’s only recourse in most states would be to file an admin­is­tra­tive com­plaint, which is of lit­tle con­cern to most employ­ers,” he said. “The threat of a civ­il law­suit for back pay and dam­ages is a much big­ger incen­tive to fol­low the law.”